FEDERAL COURT OF AUSTRALIA

Nayak v Minister for Immigration & Border Protection [2015] FCA 1270

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the appeal of the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from the decision of the Federal Circuit Court of Australia (Nayak v Minister for Immigration & Anor [2015] FCCA 688) delivered on 26 March 2015, dismissing an application for review of a decision of the Migration Review Tribunal (Tribunal) made on 24 October 2013.

Facts

2    The appellant is a national of India who first arrived in Australia on a student temporary (Class TU) visa (student visa). He applied on 15 June 2011 for the grant of a student visa.

3    The delegate of the first respondent (Minister) on 22 December 2011 refused his application on the grounds that he did not provide evidence of his English language proficiency, and accordingly did not satisfy cll 572.223(2)(a)(i)(A) and 5A404 of the Migration Regulations 1994 (Cth) (the Regulations). The delegate was not satisfied that the appellant met the primary criteria for any of the other visa subclasses available within Class TU.

4    On or about 29 December 2011, the appellant completed an application form for the review of the decision of the Minister’s delegate to the Tribunal. He stated his “Residential address in Australia” as G01/1 Griffith Street, Blacktown, NSW 2148 (Blacktown Address). He also provided a mobile phone number and an email address. Later, he ticked a box beside the words “to me at my address” under the heading “Please send all correspondence in connection with this review”, disclosing the following address: 5/96-98 Wigram Street, Harris Park, Sydney, NSW 2150. The pre-printed statement beside the box ticked stated: “If you tick this box, all correspondence will be sent only to the address you provide below” (emphasis in original).

5    The Tribunal acknowledged the receipt of the application for review by letter dated 4 January 2012 (4 January Letter) posted to 5/96-98 Wigram Street, Harris Park, Sydney, NSW 2150. According to a Tribunal case note dated 4 January 2012 the Tribunal was advised that the appellant's residential address was the Blacktown Address.

6    The appellant’s evidence, as detailed in his affidavit affirmed on 5 June 2014, is that on 16 April 2013, he informed an officer of the Department of Immigration and Citizenship (the Department) that he would provide the Tribunal with an email address for communication with him whilst he was in India. He had contacted the Department to keep it informed of his whereabouts and how to contact him prior to leaving for India to visit his brother who was seriously ill.

7    The appellant then mailed a letter on or about that same day and before he left Australia. This fact was confirmed by a Tribunal case note, dated 23 April 2013, which stated that a letter (23 April Letter) had been received from the appellant stating that he wishes to travel to India and providing not only an email address but also an Australian phone number and two Indian phone numbers for contact with him during his stay in India. In the text of the letter he noted his address as the Blacktown Address.

8    According to the evidence of the appellant, he sent a letter to the Tribunal and submitted that he had written his address – 82 Weston Street, Harris Park – on the back of the envelope. On 26 November 2013, that is after the Tribunal delivered its reasons, the appellant sent an email to the Tribunal attaching a letter that the appellant described in the email as “almost similar [to] what I sent you on 23/04/2013.” As the primary judge found at [23] of his Honour’s reasons, this letter was different to the 23 April Letter in that the former cited the appellant’s address as “4/82 Weston St, Harris Park 2150”, rather than the Blacktown Address.

9    On the same day, an officer of the Tribunal replied to the appellant via email and outlined, relevantly, that:

Your file has been found.

Attached is a copy of a letter you sent to the Tribunal on 23 April 2013.

The envelope of the letter has a Bruce St. Blacktown address.

10    The primary judge found at [25] that the references to the “letter” in this email were references to the 23 April Letter.

11    The appellant left Sydney by air on 25 April 2013 and arrived at Ahmedabad, India the same day. Whilst the appellant was in India on 25 April 2013, he asserts that a person unknown to him faxed on 29 April 2013 (29 April Fax) to the Tribunal, ostensibly on his behalf, but in fact without his knowledge or authority, an Australian mobile telephone contact number for him and the Blacktown Address as his address. The number was his same mobile number, and the address was the same as the residential address, he had provided in the form to which I have referred. He says that this fax was contrary to what he, prior to leaving for India, had already provided to the Department before departure as his contact details. This is not the case, other than in relation to the Indian telephone numbers provided in the 23 April Letter. I will refer to this in more detail below.

12    After receiving the original acknowledgement that the Tribunal had received his application for review, the appellant did not receive any other communication from the Tribunal relating to his application until he later made enquiries of the Tribunal in November 2013.

13    Prior to this, pursuant to s 359A of the Migration Act 1958 (Cth) (the Act), by letter dated 27 September 2013 (s 359A Letter) the Tribunal wrote to the appellant to invite him to comment on information which the Tribunal considered would, subject to the appellant's comments or response, be a reason or part of the reason for the Tribunal affirming the decision under review. The appellant did not respond to the s 359A Letter. The Letter was not claimed and was returned to the Tribunal shortly after 17 October 2013. The Tribunal decided to proceed to a decision on the information available, pursuant to s 359C.

14    The Tribunal was not satisfied that the appellant met the requirements for the grant of a student visa as there was no evidence before it that the appellant was at the time enrolled in, or had a current offer of enrolment in, any applicable course of study. The Tribunal was not satisfied that the appellant met the criteria for the grant of any other visa in the applicable class.

15    The Tribunal affirmed the decision under review.

16    The appellant did not in fact receive the notification dated 25 October 2013 enclosing the Tribunal's reasons for the decision made on 24 October 2013, nor the s 359A Letter. The appellant did not receive any communication between the time of making the application to the Tribunal, other than the original acknowledgement of his application for review in January 2012, and the time of the Tribunal's decision on 24 October 2013.

17    As I foreshadowed, the appellant phoned the Tribunal on 4 November 2013 to enquire about the status of his review application when he was advised that the decision had already been made and sent to him on 25 October 2013.

18    The appellant submits that the Tribunal was on notice that the notification that the Tribunal had sent had not been received by the appellant at the Blacktown Address and was returned to the Tribunal marked “return to sender”.

Judgment of the Federal Circuit Court

19    The following summary of proceedings in the Federal Circuit Court is, substantially, taken from the Minister’s written submissions which in this respect are not controversial.

20    On 28 November 2013, the appellant filed an application for judicial review of the Tribunal's decision. In an amended application, filed on 11 June 2014, the appellant sought to rely upon five grounds upon which he said the Tribunal had fallen into jurisdictional error. The primary judge set out the grounds at [26] of his Honour's reasons.

21    The primary judge at [27] identified three questions arising from the grounds pleaded in the amended application:

(a)    Was the power conferred by s 359C(2) of the Act engaged?

(b)    If engaged, was the Tribunal obliged to exercise that power reasonably?

(c)    If so, did the Tribunal fail to exercise the power reasonably?

22    With respect to the first question, of the engagement of the power under s 359C(2), his Honour distilled the real issue between the parties as being whether, by posting the s 359A Letter to the appellant at the Blacktown Address, the Tribunal gave the letter to the appellant consistently with the method specified in s 379A(4) of the Act: at [33] of his Honour’s reasons. That raised a further question of whether the Blacktown Address was either the last address for service or the last residential or business address the appellant provided to the Tribunal in connection with the review.

23    The primary judge concluded that s 359C(2) was properly engaged, and that the appellant had, by way of the 29 April Fax received by the Tribunal, lodged an address for service with the Tribunal for the purposes of reg 4.39 of the Regulations. The address for service communicated to the Tribunal in the facsimile was the Blacktown Address. The primary judge made an alternative finding that even if the 29 April Fax had not been sent to the Tribunal by the appellant, the Tribunal would have nevertheless been entitled to send the s 359A Letter to the appellant at the Blacktown Address as that was the address nominated as the appellant's residential address in his application for review to the Tribunal: at [50]. The appellant had submitted before the Court below that the Tribunal had erred by sending the s 359A Letter to the appellant as the Blacktown Address was not the appellant's address for service for the purposes of s 379A(4): at [16]-[25].

24    With respect to the second question, the primary judge concluded that the power of the Tribunal to proceed to determine an application for review pursuant to s 359C(2) had to be exercised reasonably: at [69].

25    With respect to the third question, the primary judge found that the Tribunal's decision to determine the review as it did was within the range of decisions that a reasonable decision maker, who understood the subject-matter, purpose and scope of s 359C(2), and knew the information which the Tribunal did know, or ought reasonably to have known, could have made: at [70(c)] and [81].

26    The primary judge rejected the arguments advanced by the appellant that the sending of the 29 April Fax had caused a fraud on the appellant: at [49]. The primary judge further rejected the argument that the Tribunal was under a duty to inquire as to the appellant's address for service: at [83].

Grounds of appeal

27    The appellant advances six grounds of appeal, which are summarised as follows:

(a)    The primary judge denied the appellant procedural fairness in respect of his Honour's finding that it was the appellant who had sent the Tribunal the 29 April Fax or that it was done so on the behalf of the appellant.

(b)    The primary judge erred in not finding that the Tribunal committed jurisdictional error when it failed to serve the appellant with the s 359A Letter.

(c)    The primary judge erred in not finding that the Tribunal denied the appellant procedural fairness in breach of s 360 of the Act.

(d)    The primary judge erred in not finding that the Tribunal committed jurisdictional error in making its decision being such that no reasonable Tribunal would have made it.

(e)    The primary judge erred in not finding that the Tribunal committed jurisdictional error when it failed to carry out its statutory duties when it was under a duty to make further enquiries to ensure that the appellant could participate in the review process.

(f)    The primary judge erred in not finding that the Tribunal constructively failed to exercise its jurisdiction on account of third party fraud in connection with the sending of the 29 April Fax.

28    The first ground is directed at the procedure adopted by the primary judge. The remaining five grounds effectively re-state the grounds of review that were before the primary judge.

Legislative provisions

29    The following are the relevant provisions in the Act, as summarised accurately by the Minister, as to which there is no issue.

30    Section 360(1) of the Act provides that the Tribunal must invite a review applicant to appear before it to give evidence and present arguments, but that sub-section does not apply to an applicant to whom s 359C(1) or (2) applies. Relevantly, s 359C(2) provides that if an applicant is invited under s 359A to comment on or respond to information, and does not do so within the time stipulated, the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information. Section 360(3) provides that an applicant to whom s 359C(1) or (2) applies is not entitled to appear before the Tribunal.

31    Section 359A provides the mechanism by which the Tribunal may invite an applicant to comment on or respond to information. Relevantly, s 359A, cross-referring to s 379A, prescribes the way in which the Tribunal is to send documents to an applicant: s 359A(2)(a). Section 379A sets out the methods by which the Tribunal is to send documents to an applicant.

32    One such method, under s 379A(4), permits the Tribunal to send a document by dating it, and within three working days of the date of the document, dispatching it by prepaid post or other prepaid means to the last address for service provided to the Tribunal by the recipient in connection with the review, or to the last residential or business address provided to the Tribunal by the recipient in connection with the review.

33    Section 379C(4)(a) provides that an applicant who is sent a document pursuant to s 379A(4) is taken to have received the document seven working days after the date of the document.

34    Regulation 4.39 provides, inter alia, that an applicant for review of a Part 5-reviewable decision or a Part 7-reviewable decision may lodge an address for service in a review, and at any time after lodging an address for service, lodge a new address for service in that review, and that if an applicant lodges with the Tribunal a new address for service, that new address becomes the applicant for review's address for service in the review.

Ground 1

35    This ground concerns the conclusion of the primary judge at [44] of his Honour’s reasons that it was:

highly improbable that the 29 April fax was written without the knowledge of the applicant. … To the extent the applicant intends to say he did not compose the 29 April fax or that he was unaware of who composed the 29 April fax, I do not accept that evidence.

36    The appellant submits that there was no issue before the primary judge that the appellant had arranged the fax to be sent and that his Honour had proceeded of his own accord to make an adverse credibility finding, citing [16] of his reasons. The appellant submits that he would have been able to explain and put forward his explanations had contentions been raised in respect of his recollections of the event.

37    He further submits that although he had filed affidavits and was cross-examined by counsel for the Minister he was not cross-examined on matters before his Honour as to whether he was the author of, or had authorised the 29 April Fax. The appellant submits that as his credibility was at stake these matters should have been properly put to him and had this occurred he could have provided explanations.

38    Accordingly, this ground is to the effect that the primary judge denied the appellant procedural fairness in finding that the 29 April Fax was sent by the appellant, or by someone on his behalf, to the Tribunal, in circumstances where neither party before the Court below advanced the point, and the appellant was not cross-examined by counsel for the Minister in respect of the sending of the fax.

39    The primary judge made the finding of ‘high improbability’ in relation to the appellant's evidence that he did not send the 29 April Fax to the Tribunal, on the basis of the authorities cited by his Honour, namely Hardy v Gillette [1976] VR 392 and Ellis v Wallsend District Hospital (1989) 17 NSWLR 553: at [42] and [43].

40    The primary judge's conclusion at [44] was one of fact, open to him to make. Although counsel for the Minister did not cross-examine the appellant on his evidence that he did not send the 29 April Fax to the Tribunal, it remained a matter for the Court to be convinced of the appellant's evidence before accepting it. The 29 April Fax to the Tribunal comprised two pages. The first was a copy of the 4 January Letter from the Tribunal, which acknowledged its receipt of the appellant’s application for review. The second page, which I mentioned at the outset, notified the Tribunal of the appellant’s mobile number and residential address which in each case were the same as had been provided by him in the form referred to earlier. Although not expressed in the primary judge’s reasons, it is readily apparent as to why his Honour came to the conclusion he did, namely, that it was highly improbable that the appellant did not send the 29 April Fax. How did some unidentified person, unknown to the appellant come into possession of the 4 January Letter to him from the Tribunal, or details of his residential address and mobile number? And what possible motive could lie behind such a fax being sent by someone other than the appellant?

41    I accept the Minister’s submission that there was no error in his Honour's reliance on the authorities set out above. Where the evidence-in-chief of a witness on a particular issue appears unconvincing, the fact that the witness was not cross-examined “would, or might, be of little importance in deciding whether to accept his evidence”: Bulstrode v Trimble [1970] VR 840 at 848.

42    The Minister made no submission to the primary judge that it was the appellant who sent the fax. Consistently he submitted that there was no evidence of any fraud causing the Tribunal's jurisdiction to remain constructively unexercised.

43    The primary judge was confronted with the issue and weighed the conflicting evidence, including that of the appellant who claimed he neither knew of the 29 April Fax nor sent it. His Honour concluded that the appellant either composed the fax, or knew who composed it, and that he sent the fax to the Tribunal. There was no denial of procedural fairness.

44    As the primary judge found (at [50]), even if the 29 April Fax was not sent by the appellant, it was open to the Tribunal to have sent the s 359A Letter to the appellant at the Blacktown Address, which was stated as his residential address in the initiating application for review; the result would have been the same if the 23 April Letter constituted a change of address for service as that letter nominated the Blacktown Address as one of the addresses at which correspondence could be sent to him.

45    The first ground fails.

Grounds 2 and 3

46    I accept, as the Minister observes, that the second and third grounds may be dealt with together, as the appellant's right to be invited to a hearing pursuant to s 360 of the Act is contingent on the question of whether s 359C(2) applied to the appellant: s 360(2)(c).

47    The appellant submits that he did not appear before the Tribunal as he was not invited pursuant to s 360 to do so and further, that the Tribunal was on notice on the date it made its decision that he had not received any s 359A notice as the invitation had been returned to the Tribunal.

48    He submits that the Tribunal did not invite him to appear at the hearing through the proper address for service which he had provided to the Tribunal. Thus, he submits, he did not get an opportunity to appear at the hearing and present arguments. He contends that the evidence discloses that he (and the earlier mentioned officer of the Department) had on 16 April 2013 orally advised the Tribunal that his address had changed and that he was to be contacted via email or telephone for a period whilst he was in India.

49    He continues to rely upon his assertion that the 29 April Fax changing his address was not sent by or known to him or on his instructions. The Tribunal, on a basis open to it, rejected this evidence.

50    He submits that the Tribunal denied the appellant procedural fairness in breach of s 360 of the Act when he was denied opportunity to appear and present arguments in relation to his application for review in circumstances and to ensure that he could participate in the review process.

51    The appellant submits that in failing to invite the appellant to the hearing the Tribunal committed jurisdictional error.

52    The issue, in each of these grounds, is whether the Tribunal erred in sending the s 359A Letter to the Blacktown Address. The primary judge identified this question as the primary issue in the case (at [33]). His Honour found, at [50], that the 29 April Fax constituted the lodgement by the appellant with the Tribunal of a new address for service under reg 4.39 of the Regulations, namely, the Blacktown Address, and that the Tribunal therefore was entitled to send the s 359A Letter to this address. This finding was open to it. As I mentioned, the 29 April Fax was not referrable to his temporary stay in India. It was responsive to the Tribunal’s instructions regarding any change to his address as set out in the 4 January Letter which was part of the 29 April Fax. The primary judge found, consequently, that the appellant was not entitled to appear before the Tribunal: at [52].

53    The appellant's primary contention in this regard is that he provided an address in Harris Park, NSW to the Department in connection with his application for a bridging visa to enable him to travel to India and that this address was therefore the appropriate address for the Tribunal to have sent the s 359A Letter. However, as the primary judge correctly concluded at [37] the Harris Park address provided by the appellant to the Department was not provided to the Tribunal in writing, and was not provided by the appellant in connection with his application for review. It therefore did not meet the requirements for the provision of an address to the Tribunal under s 379A(4).

54    Having found that the appellant provided to the Tribunal the Blacktown Address as his address for service, the Tribunal, as the Minister correctly submits, was entitled to send the s 359A Letter to that address, and to proceed as it did following the appellant's failure to respond to the letter.

55    It follows, in relation to the third ground that because the Tribunal sent the s 359A Letter to the appellant in accordance with the requirements of s 379A, the appellant was not entitled to attend a hearing before the Tribunal. These grounds fail.

Ground 4

56    This ground overlaps with grounds 2 and 3. The appellant submits that the Tribunal committed jurisdictional error in making its decision which no reasonable Tribunal could have made, disallowing the appellant from participating in the review process and making its decision without hearing from him, in circumstances where it knew that that the appellant had not received the invitation to respond as it had been returned to the Tribunal. He reiterates that he (and the officer from the Department) had on 16 April 2013 orally advised the Tribunal that his address had changed and that he was to be contacted via email or telephone for the period whilst he was in India.

57    He submits that the Tribunal committed jurisdictional error when it failed to fully engage with the application, despite being aware that the appellant had changed address. He cited Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] in support.

58    He adds to these factors others:

    the document received by the Tribunal was unsigned;

    the Tribunal was aware that there was no agent acting in the matter;

    the Tribunal knew that the appellant was not at the Blacktown Address;

    the Tribunal had alternative means of communication; the appellant had provided the Tribunal with email as a means of communication.

59    He submits accordingly that the findings of the Tribunal were arbitrary or lacking in proper engagement with the claims and evidence.

60    The appellant acknowledged that s 359C conferred a discretion upon the Tribunal to proceed to determine the application but submits that its exercise of that discretion was unreasonable in the circumstances to which I have referred.

61    It follows, he submits, that the jurisdictional error committed by the Tribunal was to come to its conclusion that was so unreasonable that no reasonable decision maker could have reached it.

62    The primary judge was plainly cognisant of the requirement that the discretion in s 359C(2) be exercised reasonably: at [70]-[77] of the reasons. In these paragraphs, his Honour considered the subject matter, scope and purpose of s 359C(2) in conjunction with that of s 379A. His Honour concluded that it would undermine the purpose of s 379A to construe s 359C(2) as requiring the Tribunal, when exercising its discretion under s 359C(2), to consider as a relevant factor the applicant not having received the document provided pursuant to s 379A. Further his Honour concluded, at [81], that there was nothing in the evidence to lead to a conclusion that the Tribunal's decision to take no further action to contact the appellant was one that no reasonable decision-maker could have taken. I find no error in that respect. The appellant does not challenge anything stated by his Honour at [70]-[77] of the reasons.

63    His Honour’s rationale for concluding that the appellant’s last address for service was the Blacktown Address and thus for sending the s 359A Letter to that address, was not arbitrary. Nor was his conclusion arrived at without a consideration of the evidence. The primary judge set out clear reasons for concluding that the Blacktown Address was the appellant’s last residential address or address for service provided by him to the Tribunal: see [36]-[52].

64    It does not advance the appellant’s case to contend that it would have been “reasonably easy” for the Tribunal to obtain his updated address details. This submission begs the question. The Tribunal already had his residential address details provided by him in writing namely, the Blacktown Address. The Tribunal was entitled to send documents to him at that address.

65    This outcome is not altered even accepting that the Tribunal’s s 359A Letter was returned marked “return to sender”. Section 379C(4)(a) provides that an applicant who is sent a document in accordance with s 379A(4) is taken to have received the document seven working days after the date of the document. A Full Court of the Federal Court, in respect of a comparable provision of the Act in s 494C(4), held that the deeming provision is not a rebuttable presumption: Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163 at [17]-[18], citing Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550 at [69].

66    The Tribunal's decision for these reasons was not unreasonable, either in the Wednesbury sense, or as discussed in Li.

Ground 5

67    The appellant submits that the Tribunal committed jurisdictional error when it failed to carry out its statutory duties when it was under a duty to make further enquiries to ensure that he could participate in the review process. He submits that the primary judge failed to consider the issue of the Tribunal's duty to make enquiries separately but may have considered the argument co-mixed with the duty to exercise power under s 359C(2) of the Act, referring to [53]-[83] of the his Honour’s reasons.

68    He submits that when the Tribunal knew its s 359A Letter had been returned to it unopened it was under a duty to make further enquiries to ensure that he could participate in the review process. He contends that it was reasonably easy for the Tribunal to obtain updated details of his address from the institution where he was enrolled. Alternatively, it could have contacted him by email or phone.

69    The appellant submits that in undertaking the review of the delegate's decision the Tribunal in this instance "was bound to make its own enquiries and form its own views" about the application being made citing Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [26]; further discussed in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [19]. He submits, it seems, that his address had changed, and the Tribunal had the address (relying on SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22 at [29]).

70    He submits that the Tribunal was clearly on notice of the fact that he was not aware of the s 359A Letter. The appellant's critical facts in the matter before the Tribunal could be provided by him even if the Tribunal itself could not do so.

71    Further, the appellant submits that the evidence was easily obtainable by a telephone call to him (referring to the decision in Khant v Minister for Immigration and Citizenship (2009) 112 ALD 241, in particular [75]-[80] of that decision) as per the telephone contact provided or contacting him through his email address.

72    The appellant submits that this is an obvious enquiry that in the factual circumstances of this case should have been made prior to making the decision: (cf Khant at [73]-[74]). Further, the duty arose because the address change was already provided and the Tribunal had returned mail.

73    It is not the case that the primary judge failed to consider the issue of the Tribunal's duty to make enquiries as to an appropriate means of communicating with the appellant. His Honour made a finding as to this at [83] of his reasons, where he found, based upon Logan J's decision in Aneja v Minister for Immigration and Border Protection [2014] FCA 572, that although the Tribunal was entitled to make inquiries on its own initiative if it chose, it was not obliged by the Act to make some “roving inquiry” in order to try and find the appellant. I find no error in his Honour’s conclusion in this respect or the reason for it.

74    As the appellant acknowledged there are only limited categories and occasions on which the Tribunal will be obliged to make inquiries: SZIAI. As the primary judge found, the statutory regime is designed to provide certainty in relation to the service of documents. The primary obligation was upon the appellant to notify the Tribunal of any change to his address and to do so in writing. This he did by the 29 April Fax he sent. It would be inimical to the statutory regime and would be to turn a blind eye to the appellant’s own statutory breach in this regard to require the Tribunal to, as it were, make up for his own shortcomings.

75    I find no error in the findings of the primary judge. This ground fails.

Ground 6

76    The appellant asserts that the primary judge erred in failing to find that the sending of the 29 April Fax, which he says was by a “migration agent of the appellant”, resulted in there having been a fraud on the Tribunal, which affected the Tribunal’s exercise of its jurisdiction.

77    This ground relies, as do several other grounds, on a rejected factual basis, namely, that it was not the appellant who sent, or knew of the sending of the 29 April Fax.

78    I have already rejected the appellant’s grounds which rely upon his rejected version of the facts being overturned.

79    This ground fails at the threshold. The facts as found by the Tribunal cannot support the allegations of fraud in the sense as described in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. The primary judge resolved this ground against the appellant for these same reasons at [49]. He was correct to do so.

80    Accordingly, no such jurisdictional error has been established. This ground fails.

Orders

81    The appeal will be dismissed. The appellant must pay the Minister’s costs of the appeal.

Associate:    

Dated:    19 November 2015